Citation Nr: 0933825
Decision Date: 09/09/09 Archive Date: 09/17/09
DOCKET NO. 05-38 921A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for psychiatric
disability, to include post-traumatic stress disorder (PTSD).
2. Entitlement to service connection for a laceration scar
of the right thigh.
3. Entitlement to service connection for a burn scar of the
chest.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The Veteran had active service from December 1970 to December
1973, including service in the Republic of Vietnam.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions by the Department of
Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO).
A hearing was held at the RO before the undersigned acting
Veterans Law Judge in April 2008.
In June 2008, the Board remanded the case for additional
development.
The Board notes that in a written statement dated in July
2009 the Veteran's representative raised a claim for service
connection for psychiatric disorders other than PTSD. In
light of the decision of the United States Court of Appeals
for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet.
App. 1 (2009) (the scope of a mental health disability claim
includes any mental disability that may reasonably be
encompassed by the claimant's description of the claim,
reported symptoms, and the other information of record), the
Board has recharacterized the issue as set forth on the title
page.
The Veteran's psychiatric disability claim is addressed in
the REMAND portion of the decision below and is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The Veteran has a 0.5 cm by 1 cm laceration scar of the
right thigh which resulted from an accidental knife injury in
service.
2. The preponderance of the evidence shows that the Veteran
does not have a burn scar of the chest.
CONCLUSIONS OF LAW
1. A laceration scar of the right thigh was incurred in
service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.303 (2008).
2. A burn scar of the chest was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. §§ 3.02, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2008), provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also requires VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
In the present case, the Veteran was provided with the notice
required by the VCAA by letters dated in August 2004, May
2005, June 2007 and October 2007. The RO specifically
informed the Veteran of the evidence required to substantiate
his claims, the information required from him to enable VA to
obtain evidence on his behalf, the assistance that VA would
provide to obtain evidence on his behalf, and that he should
submit such evidence or provide VA with the information
necessary for VA to obtain such evidence on his behalf. The
2007 letters also included information regarding the
assignment of disability ratings and effective dates in cases
where service connection is granted. The record also
reflects that the originating agency readjudicated the
Veteran's claim following the provision of the required
notice and the completion of all indicated development of the
record. Thus, the Board finds that he was provided with the
notice required by the VCAA.
Moreover, all available evidence pertaining to the Veteran's
claim has been obtained. The Veteran has had a hearing. The
record before the Board contains service and post-service
treatment records. In addition, the Veteran has not
identified any additional pertinent evidence that could be
obtained to substantiate his claim. The Board is also
unaware of any such evidence. Therefore, the Board is
satisfied that VA has complied with its duty to assist the
Veteran in the development of the facts pertinent to the
claim.
For the above reasons, it is not prejudicial to the Veteran
for the Board to proceed to finally decide the issue
discussed in this decision. See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004); Quartuccio, 16 Vet. App. 183; Sutton
v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet.
App. 384 (1993); see also 38 C.F.R. § 20.1102 (2008)
(harmless error).
I. Entitlement To Service Connection For A Laceration Scar
Of The Right Thigh.
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. § 1110.
During the hearing held in April 2008, the Veteran testified
that during service he was working as a cook and he
accidently injured his right leg on a knife. He said that he
could not walk for two weeks. He recounted that during
service the knife wound was packed to treat an infection, and
they considered sending him for treatment at a hospital in
Japan because the infection was so bad. The Veteran said
that he had gone to dermatology to have the scar analyzed,
and one doctor said he did not have any signs of a scar, and
another said that he did.
Although the Veteran's service treatment records do not
contain any references to the accidental knife injury, the
Board finds that the Veteran's account of sustaining such an
injury is credible.
The Board further finds that the Veteran has at least minimal
residuals of such an injury. A VA medical treatment record
dated in September 2006 reflects that the Veteran was seen at
a VA dermatology clinic where he reported that he had
sustained a stab from a knife in service and would like the
scar to be documented by the dermatology clinic. On physical
examination, it was noted that the right upper thigh and had
a 0.5 cm by 1 cm atrophic scar.
The Board finds that the Veteran has a 0.5 cm by 1 cm
laceration scar of the right thigh which resulted from an
accidental knife injury in service. Accordingly, the Board
concludes that a laceration scar of the right thigh was
incurred in service. The Board has considered McClain v.
Nicholson, 21 Vet. App. 319, 321 (2007) which held that the
requirement that there be evidence of a current disability in
a service connection claim is satisfied by evidence showing
that the Veteran had such a disability at the time the
Veteran filed claim for compensation, or during the pendency
of that claim, and that a claimant may be granted service
connection even though the disability resolves prior to the
Board's adjudication of the claim.
II. Entitlement To Service Connection For A Burn Scar of the
Chest.
As to the burn scar of his chest, the Veteran testified that
you could not see it but it was there. The Veteran stated
that the only time that it could be seen was when he got a
suntan. He said that after getting a burn on the chest in-
service he was seen one time in the field, and another time a
day later and recounted that he was given a salve or cream to
put on it. He stated that he was not currently getting
treatment.
The service treatment records have been obtained, but do not
note any scars of the chest. The report of a medical
examination at separation in October 1973 reflects that
examination revealed a scar of the left wrist, but no other
scars were noted.
Similarly, the post service medical records do not contain
any mention of chest scars. A VA dermatology treatment
record dated in February 2004 reflects that the Veteran had a
history of Reiter's disease and complained of having mild
scaling of the scalp, ear, legs, and genital area, but there
was no mention of scars of the chest. A VA dermatology
record dated in April 2007 notes that the Veteran was given
treatment for various skin diseases including seborrheic
dermatitis; however scars affecting the chest were not noted.
In fact, it was noted that the chest was "clear." A
private medical treatment record, which is not dated, states
that the Veteran had a rash on his arms and chest. However,
the only diagnosis was petechiae, and there was no mention of
scars due to burns or a knife wound.
The preponderance of the evidence shows that the Veteran does
not have a burn scar of the chest, and has not had such a
scar at any time since filing his claim. The Court held in
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) that a
service-connection claim must be accompanied by evidence
showing that the claimant has the claimed disability. As
such, the Board finds that a burn scar of the chest was not
incurred in or aggravated by service. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303.
ORDER
Service connection for a laceration scar of the right thigh
is granted.
Service connection for a burn scar of the chest is denied.
REMAND
Service connection for post-traumatic stress disorder
requires medical evidence diagnosing the condition in
accordance with Sec. 4.125(a) of this chapter, a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor actually occurred. 38 C.F.R.
§ 3.304(f).
The Veteran alleges that incidents in service caused him to
develop PTSD. The Veteran's DD 214 reflects that he was a
food service specialist who had service in Vietnam. During a
hearing held in August 2006, he recounted that while in
Vietnam they had to prevent villagers from stealing food out
of Army trucks by hitting them with baseball bats. He denied
any situation such as incoming mortars. In his substantive
appeal statement, the Veteran reported that the basis of his
claim for PTSD was a knife wound of the right leg in service
and a burn in service. In an undated earlier statement, he
recounted that he had sustained a wound to the leg in service
when he was poked in the right thigh by a knife while working
in a kitchen. The Veteran also reported that while on the
shooting range a spent rifle shell fell inside his shirt and
burned him.
The evidence is mixed as to whether the Veteran currently has
post-traumatic stress disorder. A few VA records contain
diagnoses of PTSD or equivocal diagnoses PTSD. For example,
a VA record dated in November 2001 indicates that a PTSD
screen had been positive. Another VA record also dated in
October 2001 indicates that PTSD had been confirmed, yet
contains a diagnosis of rule out PTSD. An April 2004 record
indicates that the Veteran had been diagnosed with PTSD but
could not be treated until he had clean weekly urines. A VA
treatment record dated in January 2005 included diagnoses of
Major depressive disorder with worsening symptoms, rule out
seasonal affective disorder, and "possible PTSD." The
Board notes that none of these records contain any
significant explanation for the basis of the PTSD diagnosis
or the in-service stressor that could have resulted in such a
disorder.
The majority of treatment records show diagnoses other than
PTSD. A VA psychiatric screening record that is undated
reflects that the Veteran denied having PTSD symptoms such as
having nightmares of combat or other terrible experiences,
having repeated memories or thoughts or images of bad things
that had happened, feeling distant or cut off, or being super
alert, watchful or on guard. On the same form he also
indicated that he felt that he should cut down on drinking.
A VA record dated in July 2000 reflects a diagnosis of anemia
secondary to chronic alcoholism. A VA psychiatric counseling
record dated in April 2004 reflects that the Veteran was
given diagnoses of dysthymia and alcohol abuse. A VA record
dated in September 2004 reflects diagnoses of MDD [major
depressive disorder], dysthymia, and rule out seasonal
affective disorder. A VA record dated in April 2006 contains
diagnoses of MDD, recurrent, full remission; dysthymic
disorder; substance induced mood disorder, rule out social
phobia, ETOH dependence and Nicotine dependence. A January
2007 VA psychiatric record contains a diagnosis of ETOH
dependence, with all other psychiatric diagnoses listed under
the preface rule out. Many other treatment records contain
the same diagnoses. A VA record dated in December 2004
reflects that a PTSD screen was negative.
In light of the conflicting evidence, the Board finds that
additional development is warranted, to include obtaining
additional more recent treatment records and another VA
examination. The VA has a duty to afford a veteran a medical
examination or obtain a medical opinion when necessary to
make a decision on the claim. See 38 U.S.C.A. § 5103A(d).
When the medical evidence is not adequate, the VA must
supplement the record by seeking an advisory opinion or
ordering another examination. See McLendon v Principi, 20
Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain any recent
treatment records pertaining to
psychiatric disability.
2. The Veteran should be afforded a VA
psychiatric examination to determine
the nature, extent, onset and etiology
of psychiatric disability found to be
present. The claims folder should be
made available to and reviewed by the
examiner. All indicated studies should
be performed and all findings should be
reported in detail. The examiner must
diagnose all psychiatric disabilities
found to be present. He or she must
specifically rule in or exclude a
diagnosis of PTSD. The examiner must
opine whether it is at least as likely
as not that any psychiatric disability
found to be present is related to or
had its onset in service. The
rationale for all opinions expressed
should be provided in a legible report.
3. Then the RO should readjudicate the
claim. If the benefits sought on appeal
remain denied, the appellant should be
provided a supplemental statement of the
case (SSOC). An appropriate period of
time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App.
369 (1999). This claim must be afforded expeditious
treatment. The law requires that all claims that are
remanded by the Board of Veterans' Appeals or by the United
States Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2007).
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs